Why Do We Obey Soft Law?

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Book Chapter

Reference

Why Do We Obey Soft Law?

FLÜCKIGER, Alexandre

FLÜCKIGER, Alexandre. Why Do We Obey Soft Law? In: Stéphane Nahrath, Frédéric Varone.

Rediscovering Public Law and Public Administration in Comparative Policy Analysis: a Tribute to Peter Knoepfel . Lausanne : Presses polytechniques romandes, 2009. p. 45-62

Available at:

http://archive-ouverte.unige.ch/unige:5317

Disclaimer: layout of this document may differ from the published version.

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Stéphane Nahrath, Frédéric Varone (éd.), Rediscovering Public Law

and Public Administration in Comparative Policy Analysis: a Tribute to

Peter Knoepfel, Presses polytechniques romandes/ Haupt, Lausanne

et Berne, 2009, p. 45 - 62

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46 Law, Public Administration and Policy

a binding text.^1t4 The Joint Declaration of the European Ministers of Education convened in Balogna on June 19, 1999 (Balogna Declaration), a non- binding instrument, is an example of the potentially powerful effects of soft law. This text was followed and implemented much more effectively and quickly in universities than the rule irnposing a fine on pedestrians who use a bicycle path when a sidewalk is available. This is a remarkable phenomenon for a jurist: rules of law, though compulsory, are sometimes less respected than rules of soft law, although clearly rules of hard law are often more effective than rules of soft law taken in isolation,5 and soft law 18 by far not always as effective. The mast marked effect certainly results from a combination of rules of law, their enforcement and soft law instruments. Neither a compulsory nature nor a penalty alone is a determining factor in the analysis of compliance with rules.

The need to legitimize the State's non~normative action

Since a non-compulsory rule may be enough to change individuals' behaviour, the State has made a habit of using such rules in addition to, or instead of, conventional legal instruments. This circumvents the burdensome legal processes that apply to rules of law and contributes to strengthen the State's hold. The phenomenon is not a new one. There are traces of it, for example, in Michel Foucault's concept of governmentality.6 However, its originality resides in jurists' awareness of the power of these nweaklt instruments, with the legal system conveniently brandishing their non-le gal nature as an excuse to avoid addressing the legality or constitutionality of such instruments. The challenge, then, is to convince the State to develop appropriate legitimation mechanisms. Constitutionallaw did so in the past by democratizing law and subjecting it to requirements of precision and the control of constitutionality, while administrative law did so by requiring procedural guarantees for the adoption of administrative decisions or certain plans.

With this end in mind, we will explore how soft law exerts its influence.

We will detail these mechanisms from a psychological perspective. The role of emotions in persuasion techniques as well as manipulation techniques that affect individuals' behaviour without their knowledge will then be examined.

The roie of emotions in persuasion techniques

The concept of emotion is not easily defined. Still today, many references are made to the six basic emotions "îdentified by Paul Ekman: anger, fear,

40 Shelton, Dinah, "Soft Law," Handbook of International Law, Routledge Press, 2008, ch. 4.

6 See, for example, studies showing that the existence of an obligation to wear seatbelts results in a far greater change in behaviour than a s'impIe recommendation (Killias, Martin, Précis de criminologie, 2nd Ed., Berne 2001, p. 453ss).

6 See Flückiger, Alexandre, "Régulation, dérégulation, autorégulation: l'émergence des actes étatiques non obligatoires," Revue de droit suisse II, 2004, p. 170ss.

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Why DoWeObey Soft Law? 47

disgust, joy, sadness and surprise.⁷Research in the field has only made the concept more complex by distinguishing emotions from other affects such as feelings, passions or moods by categorizing and broadening them ta such an extent that it is impossible to fmd a unanimously recognized definition today.8

Emotion and reason: Two readings of the same reality

Emotion is not opposed to rationality, but interwoven closely with it. Far from interfering, emotion helps us make rational decisions in situations of uncertainty, for example.⁹ Emotion can also be described as rationa1.¹⁰ It follows, therefore, that it is more appropriate to imagine different ways of reading the same reality: while it is reasonable to drive on the right side of continental roads, an emotional reading of the issue might focus on the fear of an accident (not to mention a fine). The rational choice theory rnight lead someone to prefer a solution that involves deliberately breaking the law, if this is less costly in terms of both money and image, as studies in law and economics have theorized.¹¹ On the other hand, an emotional reading would show that des ire for wealth, greed or fear of impoverishment would weigh morc than pride and honour in compliance with law or the embarrassment that guilt stemming from a violation might evoke. The opposition between reason and emotion is in faet used for persuasive purposes in aIl decision-making processes, whether legal, political, economic or other: an individual who calls another to reason is actually trying to show him that his decision may be based on other emotions that could prevail or that certain emotions can be appeased.

As such, the intention is not to oppose reason and emotion, but to probe the emotional variable in the mechanisms at work with observation of rules.

Although this perspective is restrictive, it opportunely completes more conventional political, sociological and economic analyses.

7 Ekman, Paul, ",An Argument for Basic Emotions," Cognition and Emotion, 1992, 6, 169ss; Ekman, Paul, E~otions in the Human Face, Cambridge 1982.

8 See Deonna, Julien/ t'er.oni, Fabrice, Qu'est-ce qu'une émotion? Paris 2008.

9 Elster 1999 [note 17]. p. 28Sssj Damasio, Antonio, Verreur de Descartes: la raison des émotions, Paris 1999 (ne\v 00. 200B); Scherer, Klaus, "Zur Rationalitât der Emotionen," in Rôssner, H. (Ed.), Der gante Mensch, p.181SS, Munich 1986.

10 Bandes, Susan, The.Passion of Law, New York, 2000, p. 10; Elster 1999, p. 284SS.

I l See in particular the economic analysis of criminality according to which the

offender is supposed to aet "rationally" when committing a reprehensible act hy comparing the benefit of that act to Hs cost (amount of the criminal penalty, monetary equivalent of a sentence depriving him of freedom): Becker, G.S., "Crime and Puni8hment: An Economic Approach," Journal of Political Eeonomy 1968, p. 188;

Garoupa, Nuno, "The Theory of Optimal Law Enforcement," Journal

of

-Economic Surveys 1997, Il, p. 26788; Polinsky, Mitchell/ Shavell, Steven, 'The Economie Theory of Public Enforeement of Law" Journal

if

Economie Literature, American Economic Association 2000, S8, p. 46ss. For a behavioural approach to the economic analysis of law,

: .J~ r< r . . ,

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.,

^Law,Public Administration ond Policy

Emotion at the service of compliance with hard and soft law

Ta improve çompliance with soft law, the State can use varÏous persuasion techniques by appealing more or less strongly to emotions. This appro.ch is nototiginal, to the extent that the role of emotions can be shown easily in the application of conventional law: criminal law, in its primitive punitive aspect (confmement, exclusion, impoverishment, humiliation, suffering and death), is designed to inspire fear, ^{l i}anxiety and terraI' in the public, as weIl as evoke shame, embarrassment or guilt among those found guilty, and assuage the anger, rage and desire for vengeance relt by victims in order to impose compli.nce with the rule of I.w. The justiciable obey law because of an emotional tie, which for sorne involves fear of punishment or the resulting

shame.l~ and for others, positive emûtions 8uch as respect for or commitment ro the public good. u. Fear of punishment, however, is far from the only explanatory factor.

In the context of soft law, research on compliance with social norms¹⁶and persuasion techniques¹⁶are of great interest. Observance of non-binding rules cannot be explained solely by the rational choice theory, but Îs attributable essentially ta emotional mechanisms, particularly anticipation of shame, guilt or embarrassment in the event of violation as weIl as pride in compliance, ^l'7

with shame being evoked by others' disgust or seorn.¹⁸

The emotional reading is but one possible reading of rule compliance mechanisms. Although it has a high potential to explain changes in attitude, consideration must be given to other levers that a purely emotional approach only partially explains. That is why, in the second part, we will examine manipulation techniques that prompt individuals to unwittingly change their behaviour. Sorne research also gives less importance to the effect of emotion (in this case, fear of punishment) in compliance with law. According to this

12 Lange, Bettina, "The Emotional Dimension in Legal Regulation," Journal of Law and Society, March 2002, p. 19788, 209.

18 Miller, William, "Fear, Weak Legs, and Running Away: A Soldier's Story," in Bandes, Susan (Ed.), The Passion of Law, New York, 2000, p. 242.

1+ Deigh, John. "Emotion and the Authority of Law," in Bandes, Susan (Ed.), The Passion of Law, New York, 2000, p. 285ss.

16 Posner, Eric, Law and Social Norms, Cambridge Mass 2000; Posner, Eric (Ed.), Social Norms, Nonlegal Sanctions, and the Law, Cheltenham, Northampton 2oo7j O'Donnell, Patrick, "Social Norms & Law: An Introduction," Theory & Science 2007, vol. 9/2.

18 Petty, R./ DeSteno, D./ Rucker, D., "The raIe of affect in attitude change,"

Forgas, Joseph (Ed.), Handbook of affect and social cognition, Mahwah 2001, p. 2128S;

Petty, Richard/ Gleicher, Faith/ Baker, Sara, "Multiple roles of affect in persuasion,"

Forgas, Joseph (Ed.), Affect and Judgment, London 1991, p. 18155.

17 Elster, Jan, Alchemies of the Mind: Rationality and the Emotions, Cambridge 1999, p. 1458S. ln Gagné's view (Gagné, Learry. "Non-rational compliance with social norms: sincere and hypocritical," Social Science Information 2007, 46, p. 445ss), based on the work of Pierre Bourdieu, non-rational compliance i8 more acceptable to the group than sincere compliance.

18 Elster 1999 [note 17J, p. 149.

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Why Do WeObey Soft Law? 49

work, law is observed when individuals believe in its legitimacy19-defined procedurally"'-by complying spontaneously with it." Moral, ethical and justice-related explan.tions find in this type of work a welcome found.tion: 1 personally don't kill other humans, not because 1 fear the criminal penalty, but from a personal conviction of the correctness, fairness and legitimacy of that rule. Hence, there is no point in the legislator escalating implementation mechanisms to distil fear, instead of making the legal system more worthy of respect by improving its legitimacy.2'§!

The emotional motives for obeying soft law

The non-compulsory iffect

if

sqft Law

Because soft law is not a legal norm, it has no binding effect. Its effect is rather to modify the behaviour of the targeted groups without legally l'equiring them to do so. Yet, it retains its normative nature, since the norm is not necessarily imperative. In fact, normativity must not be confused with imperativity: "The normative is a genus with two main species: the imperative and the appreciative."25 The behaviour of soft law's targeted audience is left to their own appreciation." As such, the normative nature of soft law is appreciative rather than imperative. It arises not from "Sollen^u (must be), but tlSoliten"

(should be)."

Obedience

if

afltlwriry

The first effect stems frorn the ascendancy or prestige of the author's _figure and the emotions thus evoked (diffuse fear, desire to please or need for recognition, admiration). A recommenda.tion from a public authority has more weight than the same advice from an unknown person or an obscure association. This is the case, for example, with recommendations by the Competition Commissionⁱ⁸or the Surveillant des

prix,

which "at least has a certain moral weigh t. "i7

A bet is made on the author's influence when authorities deliberately adopt an exemplary behaviour as part of public poliey (sorting waste, renovating

19 Tyler, Tom, Why People Ohey the Law, Princeton 2006 (2nd Ed.) . .. Tyler 2006 [note 19J, p. 272.

21 Killias, Martin, Prlcis de criminologie, 2⁰⁰Ed., Berne 2001, p. 457s et 4678S for whom fear of police officers is less important overaU than most people's spontaneous compliance with law.

251 Tyler 2006 [note 19J, 4<' from cover.

51! [Trans.] Lalande, André, Vocabulaire technique et critt'que de la philosophie, Paris 1998 (1·' Ed. 1926), under the entry for "normatif." See also Amselek 1991, p. 14S.

2~ FIUckiger 2004 [note 6J, p. 280.

2,5 Flilckiger 2004 [note 6J, p. 190.

516 Tercier, Pierre, ad art. 45 LCart, ch. 45, p. 948 and Martenet, Vincent, ad art. 8 LMr, ch. 8, p. 1S92, in Tercier, P.; Bovet, C. (Ed.), Droit de la C011CUTrence: loi sur les cartels, loi sur la surveillance des prix, loi sur le marché intérieur, loi sur /es entraves techniques au commerce: comme1ltaz~re, Geneva, etc. 2002.

27 [Trans.J Bonvin, Jacques, ad art. 14 LSPr, ch. 40, p. 1172, in Tel'cier, P.; Bovet, C.

2002 [cites earlier note].

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public buildings for energy efficiency), giving individuals a model tofollowand accustoming them in the hope of sweeping them along. Citizens perceive the State'spublicity of its new behaviour as a real recommendation to adopt the same attitude,i!8

Research in social psychology on obedience shows the importance of the weight individuals give ta a figure of authority,29 regardless of whether there is a mandatory legal relationship.so Credible sources are more convincing. For example, experts have proven to be influential within the framework of anti- smoking campaigns.⁵¹

Sorne non-binding instruments are adopted, drafted and formulated like binding instruments, resulting in a bluff effect on the intended audience. 52 Here, obedience is the product of a transfer, as it were, where secret hopes are invested in the normative power of the written word55 or where the solemnity of the adoption procedure is impressive, as with sorne non-binding international declarations^s4 like the Rio Declaration (environment) or the Balogna Declaration (education).

In other cases, respect for authority is strategie. It may arise from the need to foster a climate of trust by maintaining harmonious relations with the administration, a determining factor in non-binding arrangements (or gentlemen's agreements).56 The fear of a deterioration in relations leads to compliance with non-binding instruments. This motive is particularly strong in public internationallaw, where the necessity of maintaining good relations among States means that violating a purely political commitment may result in a range of retaliatory measures.^S6

28 Flückiger 2004 [note 6J, p. 2015.

29 Girandola, Fabien, "La source," in Girandola, Psychologie de la persuasion et de l'engagement, Besançon 2003, p. 17s8.

so Milgram's experiment where subjects were pushed to obey inhumane orders must be understood from the perspective of hard law, to the extent that the experimentor gave them direct orders (Milgram, Stanley, "Behavioral Study of Obedience," Journal of Abnormal and Social Psychology 67,1963, p. 371ss).

51 Falomir Pichastor, Juan Manuel! Mugny, Gabriel, Société contre fumeur: une analyse psychosociale de l'influence des experts, Grenoble, 2004 .

.'12 Flückiger 2004 [note 6J, p. 247.

ss Tschannen, Pierre, Der Richtplan und die Abstimmung raumwirksamer Aufgabe, Berne, let. e, p. 325.

S4 Nguyen Quoc Dinh/ Daillier, Patrick/ Pellet, Alain, Public International Law,

7th Ed. Paris 2002, ch. 247, p. 378. ^J

56 Kautz, StefIen, Absprachen im Verwaltungsrecht: Zulassigkeit, Grenzen und Folgen, Berlin 2002, p. 80S; Müller-Graf, Thomas, Entrechtlichung. durch Informalisierung? ein Beitrag zur Handlungsformen- und zur Rechtsverhaltnislehre im Verwaltungsrecht, Bâle, etc. 2001, p. 173s.

S6 Virally, Michel, 'La distinction entre textes internationaux de portée juridique et textes internationaux dépourvus de portée juridique (à l'exception des textes émanant des organisations internationales): rapport provisoire," Annuaire de l'Institut de droit international, vol. 60, tome I, Paris 1983, p. 231s.

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Why Do We Ohey Soft Law? 61

This efTect is so wide-ranging that the Iegislator itself sometimes reels bound by soft law, at least politically. In public lnternational law,

"recommendations can be highly restrictive from a political stand point. They are an undeniable means of polttical pressure."" There is also a similar psychological basis for the modellaw and model treaty technique, in which a higher authority proposes to follow a modei law to standardize a practice in areas where it May not be competent.!8

Fear

Fear and anxiety are powerfui vectors of obedience. AState has only ta wield them in soft Iaw instruments ta strongly encourage the target audience ta modify its behaviour. While it is generally true that the greater the fear, the more persuasive the message, psychologists and criminologists in particular have attempted to show the limitations of this approach,S9

Fear can he related to other negative erootions that strengthen its impact, such as disgust, aversion, indignation. anger or sadness. For example, fear of global wanning' s effects can lead ta sadness or anger, while in anti-smoking campaigns, fear of disease can he accentuated by l'evolting irnages.+O These other negative emotions aione can certainly influence behaviour: 1 refrain from spitting because l feel disgust when 1 see spittle on the ground, not necessarily because 1 fear disapproving looks or other social penalties. ln other words, my own aversion to behaviours that offend my sensitivities and sense of justice and fairness keep me from adopting them.

This is the Case with many information campaigns in the area of public health: the fear of death, disease, decline or shame in AIDS prevention; fear of the shortage of organs in campaigns ta promote organ donation; fear of cancer in anti-smoking campaigns; fear of endangering the health of the elderly, the sick and babies in information campaigns during heat waves; fear of dying forests and global warming in environ mental protection campaigns;otl fear of accidents in awareness campaigns for Toad safety or occupational safety;

!7 [Trans.] Nguyen 2002 [note 34J, ch. 247, p.378. See along the same lines Virally, Michel, "La distinction entre textes internationaux de portée juridique et textes internationaux dépourvus de portée juridique (à l'exception des textes émanant des organisations internationales): rapport provisoire," Annu41.re de l'InsHtut de droit

internationa~ vol. 60, tome l, Paris 1985, p. 235, for whom purely politieal commitments are sometimes m01'e restrictive than legal commitment8.

"See Flückiger 2004 [note 6[, p. 200 •.

39 Petty et al. 2001 (note

16J.

p. 2178S; Leventhal, H., "Findings and theory in the study of fear communication~" Berkowitz, L. (Ed. ~ Advances in experim.emal social p$Jclw/ogy, vol. 5., 1970, p. H!Oss. See also the thesis of Tyler 2006 [note 19J and Killias

2001 [note 21J.

t(l See the reproduction of authorized images in schedule 1 of the order of the Département fédéral de l'intérieur coneerning combined warnings on tobacco products (RS 817.064).

+l Sorne philosophers have inferred from it an "beurlstic method" (see the heuristics of fear according to Hans Jonas, Le principe responsabiliti: une éthiqfu pour la âvili.ration uchnologiqU4 Pari. 2003 [transi.] [1979J).

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5. Law, Public Administration and Poliey

fear of disease in prevention campaigns against obesity; fear of theenemy revealing its ferocity in military propaganda,42 etc.

In fact, these primaI fears are not the only emotions that prompt individuals to follow the behaviours advocated by such campaigns. Reality is not as clear- eut, Effectiveness must be understood in combination with other tool8.

including legal instruments. The effect of anti-smoking or anti-drinking information campaigns is thus reinforced with special taxes on cigarette packets and strong alcoho1.^4sParallel motivations sometimes meet, as with the rate of protected sexual intercourse, a part of which can be attributed directly to AIDS prevention campaigns while another part may stem from competing motives such as a desire to assuage the fear of unwanted pregnancy, other sexually transmitted diseases, or a criminal penalty.

The images used in such campaigns indisputably enhance their emotional impact, as illustrated with anti-smoking and road accident prevention campaigns. Nevertheless, the influence of images in a propaganda context is controversial today.-++

Finally, more generally, an individu al may feel pressure to change from the social group to which he belongs, if he fears conflict with the group. Social psychologists cal! this attitude conformit:y."

Regret is also at play in obedience mechanisms, especially the anticipated foar of regret or remorse that may arise from behaviour contrary to a recommendation. Economists have even proposed a "theory of regret, "46

according to which the fear of regret (e.g., for an investor to miss a future increase or sus tain a later loss) leads to irrational decisions. Other examples of regret or remorse include that felt after failing to wear a condom for risky sexual intercourse or an earlier failure to sign one's organ donor card when awaiting a transplant.

Legal mechanisms of usingfear in soft law instruments

The legal order may provide for legal mechanisms intended to strengthen observance of soft law rules. This cloes not mean they become legally binding.

42 Géré, François, La guerre psychologique, Paris, 1997.

4-' See, for example, l'effect of the alcopop tax on consumption of these beverages (Feuillefldérak 2003 1984).

<H For the origin of theories on the effectiveness of such images, see Tchakhotine,

S., Le viol desfoules par la propagande politique, 1939, new ed., Paris, 1992; Ellul, Jacques, Propagandes, Paris, 1990. Contra: Gervereau, L., Histoire du visuel au XXe siècle, Paris, 2003.

4.'1 Asch, S. E., "Effects of group pressure upon the modification and distortion of

judgment," H. Guetzkow (Ed.) Groups, leadership and men. Pittsburgh 1951; Doise, w.,

Deschamps,

J.-c.

and Mugny, G., Psychologie sociale expérimentale, 2 nd Ed., Paris, A. Colin, 1991, chapter 7. On the role of conformity in compliance with soft law in finance, see Roth, Monika, Sofllaw: Ordnungsvisionen in flux: eine Standartbestimmung mit Fokus auf complia.nœrelevante Fragestellungen, Berne 2006, p. 89.

~6 Loomes, Graham/ Sugden, Robert, "Regret Theory: An Alternative Theory of Rational Choice Under Uncertainty," The Economie Journal, vol. 92, no 368, 1982, p.

805ss.

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Why Do We Ohey Soft Law? 65

Yet the psychological mechanisms the Law evokes can be similar to those of binding instruments. There is a fine Une between Legal sanctions and the

"pressures" that encourage non-mandatory behaviours.4,'7

This is the case of the financial pressure behind incentive taxes. These invoLve non-mandatory recommendations, as weB as payment of a sum of money. They consist of dual components, imperative and non-imperative. The advocated behaviour is not compulsor~ but simply recommended. However, the intended audience may perceive this instrument as a financial penal ty very similar to regular Legal penalties: individuals who rail ta sort their waste must pay a tax.⁴⁸The difference is that in the recommendational variant, the payment of a tax does not have the same symbolic scope as in the Legal variant where a fine is imposed. Fear of impoverishment or a desire to not waste money, generated in both hypotheses, are doubled in the second variant of anxiety that is specifie to the commencement of a criminal trial symbolically related to feelings of shame and guilt. In practice, however, the difference tends ta fade each time smaU sums are at stake, to the extent that the legal process is then simplified. The penalty is then perceived as ".fust a tu"!+9

The pressure may also be ,regulatory, decisional or jurisdictional in nature.

The targeted audience will obey from fear that the authorities will carry out the threat to adopt regulations, render a decisian or institute praceedings. The greater the credibility of executing the threat imminently, the greater the cffect.

At one end of the spectrum, this pressure may be very diffuse, political in nature, like non-binding, informaI arrangements intended ta avoid a regulatory

ad. Examples include the gentlemen's agreements^llO used by the Banque nationale as of the 1930sl>1 or the industry-wide agreements^6JI used in environmentallaw since the 19708." At the opposite end of the spectrum, the pressure may be "juridicised'\ while remaining a faet, when there is a Damoc/es' law. This type of law institution.lises the p.rt of the agreement binding the St.te to individuala by legally guaranteeing that the public body will not adopt state regulations in a given area in return for the "voluntary" adoption of autonomous private regulations.^Sot Although individuals are not legally obligated to adopt a self-regulated solution, in reality, their behaviour is dictated by fear that the St.te will enact less favour.ble regulations. There are

"7 Timsit. Gérard, "Sur l'engendrement du droit," Revzu de droit public 1988, p. -49.

+8 FlUckiger 2004 [note6]. p. 249s.

49 Hart, H.L.A., Le concept de droi~ Brussels 1976, p. li8.

60 Poltier, Etienne, ''Les gentlemen's agreements à participation publique," Revue lÙ

droit suisse 1 1987, p. $95.

li1 Zufferey, Jean-Baptiste, La réglementation dts systèmes sur les marchés financiers secotlda;ns: contribution dogmatique et comparative d l'Alaboration d'un droit suisse des marchés financiers, Fribourg 1994, p. $ 18.

6li1 Pfenninger. Hanspeter, Rechtliche Aspehu des informe/letl Yerwaltungshandelns,

Fribourg, 1996, p. 2li.

liS Example8 in FIUckiger 2004 [note6], p. 21.98,

64 Flückiger. Alexandre. "La loi Damoclès," in Méla11ges en l'honneur de Pierre MOOT:

théorie du droit. droit administrant. nrvanisfl.tinn. d.u. t_".itn''''p R"rno ClAA!: ~ r.lQQ __

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Law, Public Administration and Policy

examples of this in environmentai law, energy law, film Iaw, and consumer

law.~6

Fear of a trial is aiso an instrument that encourages parties not only to reach a non-binding arrangement, but aiso to respect it.⁵⁶Effectiveness is greater when the chances of success are high and the feared proceedings are long and costly. The effectiveness of the right of recourse of environmental protection organisations is based on this psychological mechanism. The effectiveness of this right does not depend on its actual use, which is extremely infrequent, but on the concrete threat of the right in the eyes of manufacturer s, due to itsjudicious and successfui use. ⁵⁷

When a court finds, or may find, that a given public or private recommendation is applied in determining the limits of negligence or carelessness, the fear of liability for unlawful acts, or even lawful acts, is a powerful factor in encouraging an individual or an authority to respect a non- binding instrument. Yet the intended audience remains free to choose another behaviour and will only be affected a posteriori, that is, if damage occurs:'l8

Sham,

Evoking shame and guilt is commonplace in criminallaw. Similarly, soft law has the greatest effect in relation to the fiar of experiencing these emotions.

Because damage to a company' s reputation may cost it dearly, the corporate image and an impeccable reputation must be maintained to avoid shame, embarrassment or humiliation.⁵⁹The private economy can achieve this through soft law instruments, like the Swiss Code of Best Practice for Corporate GovernancélO or the many codes of ethics and good conduct adopted by certain professions (Iawyers, physicians, journalists, etc.), including the public administration.⁶¹

So-called naming and shaming processes, which consist of public1y denouncing individuals, organisations or States in order to provoke

55 Flückiger 2005 [previous noteJ, p. 255ss; Flückiger 2004 [note 6J, p. 216.

66 Müller-Graf, Thomas, Entrechtlichung durch Informalisierung?: tin Beitrag zur Handlungiformen- und zur Rechtsverhiiltnislehre im Verwaltungsrecht, Bâle, etc. 200 1, p. 174.

67 Flückiger, Alexandre/Morand, Charles-Albert/Tanquerel, Thierry, Evaluation du droit de recours des organisations de protection de l'environnement, Berne, 2000, p. 85ss.

58 Flückiger 2004 [note 6J, p. 254. Sur la responsabilité de l'Etat pour ses activités non décisionnelles, see Schwarzenbach, Hans Rudolf, Staatshaftung bei verfilgungsfreiem Verwaltungshandeln: mit praktischer Anleitung zum Vermeiden/Vermindern dieser wachsenden Risiken (Riskmanagement), Berne 2006.

59 Roth, Monika, Sqft law: Ordnungsvisionen influx: eine Standortbestimmung mit Fokus auf compliancerelevante Fragestellungen, Berne 2006, p. 105ss.

60 Adopted March 25, 2002, by the apex organisation economiesuisse, setting a line of conduct and formulating recommendations. Regarding codes of conducts for multinationals, see Roth, Monika, Sqft law: Ordnungsvisionen in flux: cine Standortbestimmung mit Fokus auf compliance relevante Fragestellungen, Berne 2006,· p.

15ss.

61 Schindler, Benjamin, "Ethikfôrderung in der Verwaltung: Modetrend oder Notwendigkeit?," Schweizerisches Zentralblatt}Ur Staats- und Verwaltungsrecht 200B, p. 61ss.

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Why Do WeObey Soft Law? 66

indignation, anger, rage or disgust, playon these saffie motives.^siThe effect of such processes for individuals can be far more painful than recourse to binding legal instruments, as the example of warnings against hazardous products shows: the necessary advertising is clearly more detrimental to the manufacturer than a simple notice of prohibited distribution, sinee the manufacturer's image is tarnished.6s _Their effectiveness is questioned, especially as regards government stakeholders, as illustrated by the implementation of the open method of coordination in European law (non- compulsory method of coordinating public policy).64

Information campaigns that playon the fear of deadly disease or accidents often provoke shame or guilt in their targeted audience, as do organ donation promotions that make non-donors feel guilty for not wanting to save the lives of others.

Joy

Joy and other resulting positive emotions like pride, self-esteem, des ire and pleasure are emotions that can change the behaviour of individuals without forcing them to do 50.

This is the iotent of aIl redistributive economic instruments that playon the pleasure of winning money and the desire for profit. Thus, when a recommendation is supported by state funding, the economie ineentive strengthens the recommendation's appreciative nature commensurate with the sum at stake.

By awarding prizes and distinctions to reward exemplary attitude (see, for example, the order on the Prix du cinéma suisse),65 authorities are indirectly recommending the adoption of a specifie behaviour. This kind of

62 Stein, Jana von, '''Naming and Shaming" in the United Nations Commission on Human Rights: When and How Does it Matter?" Paper presen.ted at the 4nnu.al meeting

of

tltt International Studies A.tfoâation 48th Annual COn1Jention (published on www.al1academic.comlmeta/p179882j ndex.html). The aame process i8 used to implement the open method of coordination (OMC) in European law (Collignon, Stefan et al., "La Stratégie de Lisbonne et la méthode ouverte de coordination: 12

recommandations pour une stratégie à plusieurs niveaux plus efficace," Policy paper no

12,2006, p. 10 [www.notre-europe.eu-rubriquetravaux]).

8S Kautz, Steffen, Absprachen im Verwaltungsrecht· ZUlii.fSigkû~ Gren:un und Folgen, Berlin 2002, p.86, with ref. cit. to German doctrine. See also ibidem, p. 156 et 281S;

Tschannen, Pierre, "Amtliche Warnungen und Empfehlungen," Revue de droit suisse Il 1999, p.4S2; Nützi, Patrick, Recht.!fragen verhaltenslenkender staatlicher Informatt:on;

StrukLuren, Zllüissig!t.ei~ Haftung: iUustn:I!rt an den Beispielen AIDS und Listeriose, Berne

1995, p. 181ss

(1+ Implementation of the open method of coordination in European law io9 based on a peer pressure system that [Trans.] "kas not funct.ioned correctly, partly due to thefact that members do not wish to 'name and sham~' their peers. Stakeholders are not very motivated to engage in this tr;pe

of

process: the various members fear they will make enemùJ and reap the negative consequences in other politicaL nreas where tky show Little progress." (Collignon 2006 [note 62J, p. 10).

65 RS 44S.116.

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56 Law,Public Administration andPolicy

recommendation plays on the recipient's joy, pride, pleasure, and even the desirej envy or jealousy that suchan award may arouseinothers.

Information campaigns may aiso aim to excite feelings of joy and happiness: the pleasure of eating healthily tocounter obesity; the jay of watchinga young athlete with a heart transplantpromote organ donation; the magic of a ,troll in the shaded woods to prevent the death of forests.

Finally, we can revisît the phenomenon of social conformity discussed in the section on fear. Conformity motivated by complacency-in which an individual who fears conflict with the group prefers the pleasure of peace,--must be distinguished from conformity motivated by identification.

The latter is based not on fear but on joy, pride or desire for recognition when the individual conforms in order to establish his or her place in the group and maintain positive relations with it in the hope of eventually obtaining prestige and visibility.66

Finally, it should be noted that pleasure is an ambiguous emotion in this context, since it is often a factor opposed to the implementation of soft law rules. The individual is constantly required to balance the fears raised by an anti-smoking or AIDS prevention campaign with the pleasure of smoking or lovemaking without a condom.

Surprise

Soft law presents an interesting characteristic in this regard in comparison with hard law, in that the former often has an experimental function to test a potential future rule of law.⁶⁷This allows the State to study the reactÎon of the intended audience and either withdraw the tested measures or make them permanent, depending on the observed impact. Soft law thus accustoms citizens, or gradually acclimatizes them, to a new regime by avoiding any surprise on the clay it evolves into hard law (smoking is first discouraged, then prohibited in public places; helmets and seatbelts are first encouraged, then imposed; etc.). We find a variant of this process when non-imperative planning progressively creates accomplished facts that become increasingly difficult to counter over time.⁶⁸Certain manipulation techniques, like the door-in-the-face technique or deceit, knowingly make use of the surprise effect.

66 Baggio, Stéphanie, Psychologie sociale, Brussels 2006, p. 22; Doise, w., Deschamps, J.-C. and Mugny, o., Psychologie sociale expérimentale, 2^ndEd., Paris, A. Colin, 1991, chapter 7.

67 See Abi-Saab, Georges, "Cours général de droit international public," Recueil des cours de l'Académie de droit internationa~ t. 207, 1997, p.207, 210. There is a simillir phenomenon in hard law: legislative experimentation (Flückiger, Alexandre, ''Voter, élire et signer par Internet: le droit expérimental à J1épreuve de la sécurité," in Journées 2002 d'informatique juridique, Berne 2003, p. 107ss [ref. cit.]). In German law, see Maass, Volker, Experimentierklauseln fUr die Verwaltung und ihre veifassungsrechtlichen Grenzen: zugleich ein Beitrag zu § 7aBerlHG, Berlin 2001). '

68 Regarding such effects in planning, see Flückiger, Alexandre, Le régime juridique des plans: l'e.xempl-e du plan dt gestion des déchets, Berne, 1996, p. 117ss (ref. cit.).